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This chapter evaluates whether an individual right of access to justice has emerged under customary international law, and, if so, its scope and the limits to its exercise. It examines the access to justice as it first appeared in customary international law, i.e. as a subset of the law of state responsibility for injuries to aliens. It also explores the development of access to justice in the context of the international law of human rights. Then, it considers an examination of the norms and doctrines which may constitute an obstacle to the exercise of the individual right of access to justice. The individual's right of access to justice may suffer from restrictions and may need to be balanced against other rights and other legitimate interests of the international community. In general, this chapter tries to develop legal arguments in favour of a restrictive interpretation of traditional limitations on this right.

Although customary international law does not provide for an individual right of access to justice before international tribunals, treaty law has been gradually recognizing and consolidating an indisputable right of access to international justice by private investors in the field of foreign investment law. Following the recent growth of bilateral and regional investment treaties and of investment arbitration, the right of access to justice for the investor has shifted from access to national courts and inter-state claims to the investor-state arbitration where private actors have direct access to an international arbitral tribunal without the traditional need for the interposition of their national state in diplomatic protection. The chapter examines the implications of this opening of the international remedial process to individuals and private entities, and focuses on three distinct but inter-linked aspects of the emergence of access to justice as a human right in the field of foreign investment.

This chapter reviews the constitutional provisions of the European Union (EU) Member States. Then, some of the most pressing issues with regard to implementation and enforcement of the access to justice ideal are analysed. In addition, it assumes a European comparative approach and deals with access to justice on two levels: the national level of the Member States and the supranational level of the EU. It directly unveils the reality behind the proclamations and considers the complexities involved in the implementation of the access to justice ideal. Furthermore, it covers the decentralized level of the national legal system.

This chapter is about the compensating mechanisms and how they work to further access to justice. It starts by reviewing how publicly funded legal services can be justified given the many other calls on the public purse. It then explores one of the various forms of public funding, traditional legal aid, sometimes called judicare, where public funding goes to pay private lawyers who take on clients largely as if they were fee-paying. It also describes the structures for public funding. The next parts of the chapter move away from public funding. It addresses whether it is possible to stimulate private provision of legal services to close some of the gaps in access to justice. Furthermore, it discusses alternative dispute mechanisms to deal with people's legal disputes. It is stated that there is a need for new ways of doing things which facilitate access to justice.

This chapter examines the individual right of access to justice in times of crisis, such as armed conflict, emergency, or terrorism. It explores a variety of issues related to access via the prism of international law's response to situations of crisis, with particular reference to the distinctive categories of emergency and armed conflict. It also evaluates the extent to which individual access to justice constitutes a linchpin of the interface between international human rights law and the regulation of crisis. Then, a review of international humanitarian law's approach to individual access, and identification of contemporary challenges to and lacunae in that field, are given. Some of the current territory is explored by examining the problems posed by the legal regulation of terrorism, and the challenges faced by states in the terrorism and law interface. Furthermore, it investigates how these tensions manifest themselves in practical terms as constraints on individual access to justice.

This chapter addresses the need for the global clinical movement, which despite its widely shared mission and significant accomplishments still lacks a clear vision of how to influence the legal education around the world, to set an agenda for the future. It first articulates a unifying vision based on the three goals most widely shared by clinicians: increasing access to justice for previously unrepresented groups; reforming legal education so that it provides the knowledge, skills and values needed in our complex world; and creating a legal profession more diverse, skilled and committed to serving social needs. It then suggests strategies and models of how to reach that vision, including partnering with other entities providing legal aid; making clinical education mandatory and instituting student practice rules; improving teacher education in clinical pedagogy and communication using new technologies; ending corruption in the legal profession; and building the structure of the movement.

Although the House of Lords has confirmed that the right of access to justice is a fundamental feature of English common law, it has done relatively little to make that right into a meaningful reality. In particular it has not addressed the issues of the expense involved in taking an appeal to the Lords and the time required for the appeal process to run its course. The first section of this chapter gives one solicitor's perspective on the cost dimensions of the problem. The second section presents a barrister's view of the way the House has, rather idiosyncratically at times, gone about its business.

This chapter addresses the measures taken to further access to justice. It mostly concentrates on the Indian subcontinent, with references to Malaysia, Indonesia, Singapore, and the Philippines. Given the enormity and diversity of the region the paucity of information about some jurisdictions and the deficiency of familiarity with them, the chapter can only offer an outline of the issues involved. The discussion is by no means exhaustive of the measures which can address access to justice problems. Moreover, it explores two aspects of how states in the region have furthered economic access. The first is comparatively direct, the establishment of one type of special court. The second is in its infancy and involves state sanctioning of self-help by banks and other financial institutions to recover against the security (collateral) they have taken from borrowers for the credit advanced. It has also described an admittedly general distinction between social and economic access.

The right of access to justice, considered lato sensu, encompasses the right to an effective remedy and the guarantees of the due process of law. This has been duly recognized in the case-law of the Inter-American Court of Human Rights. The jurisprudential construction of the European Court of Human Rights, in its turn, has purported to overcome vicissitudes as to the exercise of the right to an effective remedy.There has thus been an increasing concern of international human rights tribunals to safeguard that right, which, in turn, draws attention to the imperative of securing access to justice at both national and international levels.

This chapter provides an analytical overview of the book. It annotates the chapters within the broader context of their subject matter. The first part of this chapter examines the access to justice. It is argued that access to justice is more than access to the courts. Nor need it necessarily involve lawyers. It then explains how courts can be understood institutionally and how lawyers' behaviour can be located within the working of the law. It turns to law as social engineering: what is law's role in furthering values and social goals, why might it fall short in this task, and what of the sometimes dramatic, if unintended, consequences which law produces? Furthermore, it looks at law working instrumentally to further economic development, in particular in emerging market economies. This discussion is intertwined with the issue of whether the laws of one country can be successfully transplanted elsewhere.

This chapter addresses the lack of practical, realizable remedies for victims of torture. It should be noted at the outset that the analysis is restricted to the civil law of remedies for torture. It begins with an overview of the present law. Then, it is criticized for its failure to respect the right of access to justice. Finally, a suggestion is made for a workable, realistic, and principled legal framework for a transnational torture tort that can be put into immediate effect by judges of tribunals all over the world. It is suggested that the flexible system of transnational tortuous jurisdiction, based on case-by-case appraisal of the practical availability of alternative avenues of justice, would serve to reconcile the goals of securing justice for victims of torture; the desirability to locate a claim in the most appropriate location and with the most effective procedural structure; the protection of a defendant state's legitimate interests; and the necessity to act in accordance with, and contribute to, a coherent system of international law.

The extraterritorial scope of access to justice rights has so far remained an obscure topic. The rich experience accumulated in Israel with civil claims filed by Palestinian residents and Israeli settlers of the Occupied Palestinian Territories offers a unique body of law that speaks volumes about the applicability of access to justice for foreign plaintiffs. The chapter identifies the emergence of two guiding models: the membership model that builds on the plaintiff’s official civil status and the normative model that builds on the forum’s choice of law calculation. These findings offer insights much beyond access to justice theories, relevant for comparativists all around the world. They help encode some fundamental trends in the law of international civil litigation as well as offering challenging insights into the future development of adjudicative jurisdiction in international settings.

The Civil Procedure Rules (CPR), which unified the rules of civil procedure in the High Court and county courts for the first time, took effect in April 1999. Based on the findings of Lord Woolf's Access to Justice inquiry, the CPR represented the single greatest change to the rules of civil procedure in England and Wales since the introduction of the Rules of the Supreme Court in 1883. This chapter discusses the broader historical, procedural, and policy contexts within which we might understand the CPR as being ‘a new procedural code’. It also discusses case management, costs and funding, civil evidence, and alternative dispute resolution. It also considers both the influence of the CPR on procedural reform in Europe, and the effects of EC.

In examining the access to international justice, an issue to consider is the conditions of admissibility of petitions lodged with international organs of protection of human rights. The right to an effective remedy is a basic pillar of the rule of law in a democratic society. It comes together with the guarantees of the due process of law. Another related issue raised in practice is that of the recognition of juridical personality.There is a reassuring convergence in the evolving case-law of the European and Inter-American Court of Human Rights concerning the basic right of access to justice and to a fair trial. This is one of the rights most often raised in contentious cases before those two international human rights tribunals.

The need to secure the individuals' access to justice in circumstances of adversity has further been asserted to the benefit of abandoned or ‘street’ children, members of peace communities and other civilians in situations of armed conflict, internally displaced persons, and individuals under infra-human conditions of detention.It is reassuring to find nowadays a developing case-law asserting and sustaining the prevalence of human rights of persons in situations of great vulnerability, if not defencelessness.

This chapter covers clinical legal education in Southern, East, and West Africa. It includes a short history of law clinics in each region, as well as an analysis of why the law clinics were needed and a description the clinical programs' requirements and the types of training and evaluation used. In most African countries, university law clinics were established to provide legal services and access to justice for poor and marginalized communities, as well as to teach law students practical skills. As in the United States during the 1960s, the South African clinical movement in the 1970s was closely linked to access to justice and therefore “live client” clinics tend to be the norm. The chapter concludes that apart from educating law students in practical skills and social justice, law clinics can also play a crucial role in supplementing the paucity of legal aid services in most African countries.

International human rights tribunals, such as the Inter-American and the European Courts of Human Rights, have in recent years been engaged in overcoming obstacles to the individual's direct access to justice. On three recent occasions, for example, the Inter-American Court has pronounced on the incompatibility of self-amnesties with the relevant provisions of the American Convention on Human Rights.This evolution has disclosed both an institutional and a jurisprudential dimension. The former is materialized in the presence and participation of the victims in all stages of the international legal procedure. The second has recently culminated in holdings of the Inter-American Court to the effect that the right of access to justice has nowadays entered the domain of jus cogens.